DPP v MacEoin

• Jurisdiction: Ireland
• Judge: KENNY J.:
• Judgment Date: 17 April 1978
• Neutral Citation: 1978 WJSC-CCA 1154
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 59 of 1977]
• Date: 17 April 1978

1978 WJSC-CCA 1154

THE COURT OF CRIMINAL APPEAL

People (D.P.P.) v. MacEOIN

(THE PRESIDENT OF THE HIGH COURT, MR. JUSTICE FINLAY,

MR. JUSTICE KENNY AND MR. JUSTICE McMAHON)

THE PEOPLE AT THE SUIT OF THE D.P.P.

v.

SEAN MacEOIN

1 Judgment delivered 17th day of April 1978by KENNY J.:

2 The accused, Sean MacEoin, was tried in the Central Criminal Court before Mr. Justice Butler and a jury on the charge that on 25th April 1976 he murdered Patrick Hyland. He was found guilty, was refused a certificate for leave to appeal and now appeal to this Court. At the end of the argument, the Court said that leave to appeal which would be allowed and a new trial ordered. The Court indicated that it would give its reasons for its decision at a later date: this we now do. As the accused, when giving evidence, admitted that he had struck the deceased with a hammer and as his counsel, in his closing speech, told the jury that the only issue they had to decide was whether the accused was guilty of murder or manslaughter, it is not necessary to deal with the history of the relationship between the two men in any detail.

3 In 1973, the accused, who was serving a sentence of imprisonment in Mountjoy, met the deceased there and became friendly with him. The deceased invited him to his flat at 12B Upper Sean MacDermott Street, Dublin and he visited him there periodically. At the beginning of April 1976, the deceased requested the accused to come to live with him in the flat and the accused agreed to do this, moved his belongings from where he was living and went to reside in the flat. Both of them were unmarried. The deceased drank heavily and, when drunk, spoke loudly to himself and became aggressive. On Saturday 25th April, the accused was not working and went to a number of public houses: he went back to the flat at intervals and when he did, found the deceased there. He had about 14/20 pints of stout during the day before he finally returned to the flat at about 11.30 p.m. where he found the deceased sitting at a table with a bottle of wine on it and talking to himself.

4 The accused made up a makeshift bed for himself (there was only one bed in the flat) and got into it. After some time the deceased came towards the bed shouting "You are going" and "You are going now." When the accused sat up in the bed, the deceased produced a hammer from behind his back and hit him on the head with it. The hammer fell on the floor and the two of them struggled for it. Theaccusedgot it and the deceased started to punch him. In evidence the accused said he was terrified because the deceased looked dangerous and, as he then said "I simmered over and I completely lost control of myself". He hit the deceased on the head with the hammer who then fell on the floor. The accused then stooped down and in a rage hit the deceased a number of blows (which he estimated from three to six) with the hammer on the head and killed him.

5 The accused now appeals to this Court on the grounds that the trial Judge's charge to the jury on the issue of provocation was incorrect and that his answer to the jury when they returned asking for "a clear definition of murder and manslaughter" was erroneous. His counsel also advanced the argument that the view expressed by the trial Judge and in all the reported English cases that the provocation relied or had to be such that it would provoke a reasonable man and that, in addition, it actually provoked the accused, was not the law in this country. He asked us to abandon the "objective" test and to declare that the law was that if what was relied on as provocation actually provoked the accused, (whether it would provoke a reasonable man or not) the prosecution had to prove beyond reasonable doubt that it did not.

6 Section 4 of the Criminal Justice Act 1964is the background to much of the trial Judges charge. It reads:

7 2 "4 - (1) Where a person kills another unlawfully the killing shall notbe murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

8 (2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may berebutted".

9 The first passage in the trial Judge's charge to which objection is taken arose out of his explanation to the jury of s. 4 (2) of the Act of 1964. It reads:

"and so in this case if it is established to your satisfaction that the accused man struck the deceased repeatedly over the head with a hammer to the extent of causing the type of fractures that have been described in the evidence, then the only logical - the only reasonable result of that action must be either to kill or to cause serious bodily harm but that is a presumption which can be rebutted and the suggested rebuttal in this case is that although it is conceded that the accused did in fact rain these blows with a hammer on Paddy Hyland's head, at the time he was so terrified for his own safety that he was acting in self defence and that he was so provoked by the attack which Paddy Hyland had made on him that he suffered loss of control over his own mind so as to inhibit him, to prevent him, to render him unable to form any intention and, least of all, an intention either to kill or cause serious bodily harm".

10 The trial Judge thus told the jury that the provocation had to be such that it made the accused unable to form an intention to kill or cause serious bodily harm. Indeed the view which he expressed to then later was that if there was an intention to kill despite the provocation, they should find the accused guilty of murder and that it was only when the provocation removed the desire to kill or cause serious bodily injury that it could reduce the crime to manslaughter.

11 This was the law expressed by Viscount Simon in Holmes v. D.P.P. 1946 A.C. 588 at p. 598 and in the 34th Edition (1959) of Archbold's Criminal Pleading, Evidence and Practice para 2503 in a passage based upon Viscount Simon's speech. It is, however, in out my view incorrect: the provocation relied on usually is one, if not the sole cause, of the formation of the intention to kill or cause serious injury to another. To speak of provocation negativing or depriving a man of the intention to kill or cause serious injury is to confuse cause andresult.

12 The passage in Viscount Simon's speech is inconsistent with the advice of the Privy Council in A.9 of Ceylon v. Perera (1953) A.C. 200in which Lord Goddard said: "The defence of provocation may arise where a person does intend to kill or inflict grievous...